Information Note on the Court’s case-law 204

February 2017

Rubio Dosamantes v. Spain - 20996/10

Judgment 21.2.2017 [Section III]

Article 8

Positive obligations

Article 8-1

Respect for private life

Comments made in television programme concerning singer’s alleged sexual orientation and love life: violation

Facts – The applicant was a professional pop singer. In various television programmes, comments had been made about certain aspects of her private life, mainly her sexual orientation or her allegedly stormy relationship with her partner, including the claim that she had humiliated him and encouraged him to take drugs.

Before the Court, the applicant complained th at those comments had breached her right to her reputation and to respect for her private life.

Law – Article 8

(a) The contribution of television programmes to a debate in the general interest and to the notoriety of the person concerned – The domestic c ourts had based their decisions merely on the fact that the applicant was famous. The fact that she was a well-known public figure as a singer did not mean that her activities or conduct in her private life should be regarded as necessarily falling within the public interest. The television programmes in question did not have any public interest that could legitimise the disclosure of the information, in spite of her fame, as the public had no legitimate interest in knowing certain intimate details about he r private life. The guests on the programmes had mentioned and discussed only the private life of the applicant. Any public interest, in parallel to the commercial interest of the television channels, was trumped by the applicant’s individual right to the effective protection of her privacy.

(b) The applicant’s conduct before the broadcasting of the impugned television programmes – The remarks made by the defendants in the three television programmes in question had not, according to the first-instance court, breached the applicant’s right to respect for her private life, since they had concerned aspects of her life which were alr eady in the public domain and the applicant herself had not previously objected to that disclosure.

The commentators had merely talked about rumours that had been circulating for a long time in Latin America. Those claims had been relayed by many media out lets and there had been widespread reports of comments and opinions by third parties about the applicant’s private life.

The fact that the applicant may have benefited from such media attention did not authorise the TV channels in question to broadcast unc hecked and unlimited comments about her private life.

(c) Content, form and repercussions of the impugned TV programmes – Even though the case had been re-examined on an ordinary appeal, an appeal on points of law and an amparo appeal to the Constitutional Court, the domestic courts had merely found that the reports about the applicant’s alleged homosexuality, or bisexuality, were not damaging in themselves and that it had not been suggested that she incited her ex-boyfriend to take drugs but only that their stormy love life had been the cause of the drug-taking, and that the applicant herself had not denied certain well-known rumours about her private life. On the one hand, as a result of their direct and constant contact with t he situation in the country, the domestic courts were often better placed than an international court to assess the intention of the authors of such comments and the aims of the television programmes, together with the potential reactions to those comments among the general public. On the other hand, there had been no such analysis in the judgments delivered in the case and the national courts had not carefully weighed those rights and interests in the balance to establish whether the “necessity” of the res triction imposed on the applicant’s right to respect for her private life had been established in a convincing manner. The domestic courts in question had merely taken the view that the comments had not impugned the applicant’s honour. They had not examine d the criteria to be taken into account in order to make a fair assessment of the balance between the right to respect for freedom of expression and the right to respect for a person’s private life.

Lastly, the grounds set out by the domestic courts were n ot sufficient to protect the applicant’s private life and she should have had, in the circumstances of the case, a “legitimate expectation” of protection.

In those circumstances, having regard to the margin of appreciation afforded to domestic courts in we ighing up the various interests at stake, they had failed in their positive obligations under Article 8 of the Convention.

Conclusion : violation (unanimously).

Article 41: no claim made in respect of damage.

© Council of Europe/European Court of Human Rig hts This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes